Ex-Trump aide wants judge to decide on impeachment testimony

Deb Riechmann & Mary Clare Jalonick, The Associated Press

Saturday

Oct 26, 2019 at 3:30 PM

WASHINGTON — An ex-White House adviser who's supposed to testify before House impeachment investigators on Monday has asked a federal court whether he should comply with a subpoena or follow President Donald Trump's directive against cooperating in what he dubs a "scam."

After getting a subpoena Friday, former deputy national security adviser Charles Kupperman quickly filed a lawsuit in U.S. district court in Washington. He asked a judge to decide whether he should accede to House demands for his testimony or to assert "immunity from congressional process" as directed by Trump.

Kupperman, who provided foreign policy advice to the president, has been called to testify because the impeachment inquiry is rooted in a July 25 phone call Trump made to Ukrainian President Volodymyr Zelenskiy. During the call, Trump asked the Ukrainian leader to pursue investigations of Democratic political rival Joe Biden's family and Ukraine's role in the 2016 election that propelled Trump into the White House.

At the time of the call, Trump was withholding congressionally approved military aid for Ukraine. He has repeatedly said there was no quid pro quo for the Ukraine investigations he was seeking, though witness testimony has contradicted that claim.

Kupperman said he "cannot satisfy the competing demands of both the legislative and executive branches." Without the court's help, he said, he would have to make the decision himself — one that could "inflict grave constitutional injury" on either Congress or the presidency.

His filing says "an erroneous judgment to abide by the President's assertion of testimonial immunity would unlawfully impede the House from carrying out one of its most important core Constitutional responsibilities" — the power of impeachment — and subject Kupperman to "potential criminal liability for contempt of Congress."

On the other hand, "an erroneous judgment to appear and testify in obedience to the House Defendants' subpoena would unlawfully impair the President in the exercise of his core national security responsibilities ... by revealing confidential communications" from advisers, according to the filing.

He has asked the court to expedite a decision, but unless the judge issues an opinion by Monday, Kupperman's testimony might not occur as scheduled.

The lawsuit came as Democrats investigating the president won a victory in a separate case. A federal judge ordered the Justice Department on Friday to give the House secret grand jury testimony from special counsel Robert Mueller's Russia investigation and affirmed the legality of the Democrats impeachment inquiry.

"To the extent the House's role in the impeachment context is to investigate misconduct by the President and ascertain whether that conduct amounts to an impeachable offense warranting removal from office, the House performs a function somewhat akin to a grand jury," U.S. District Judge Beryl Howell wrote.

On Saturday, Trump tweeted that he's "not concerned with the impeachment scam. I am not because I did nothing wrong."

The Democrats' inquiry continued at full speed Saturday with a rare weekend session. Philip Reeker, the acting assistant secretary of state for Europe, testified behind closed doors.

As was the case with other witnesses, the Trump administration directed Reeker not to testify, according to two people familiar with the situation who spoke on condition of anonymity because they were not authorized to publicly discuss the interaction. But Reeker appeared anyway after receiving his subpoena from the House, the people said.

Reeker was expected to corroborate testimony from previous witnesses who have described the Trump administration's dealings with Ukraine, according to a person familiar with Reeker's role in Ukraine policy. The person was not authorized to publicly discuss the testimony and spoke on condition of anonymity.

Although he is currently the top U.S. diplomat for Europe and has been since Ukraine ambassador Marie Yovanovich was recalled earlier this year, Reeker was not directly involved in debate over aid to Ukraine, which other current and former officials have said was delegated to Sondland and Volker.

Volker testified and released text messages that detailed conversations between him, Sondland and Bill Taylor, the top U.S. diplomat in Ukraine. In the messages, Taylor wrote that he thought it was "crazy" to withhold aid from Ukraine for help with a political campaign. Sondland and Taylor, who still work for the government, have already testified and detailed their concerns about the influence of Trump's personal lawyer, Rudy Giuliani, on Ukraine. Giuliani was leading the push for the investigations.

Taylor testified that he was told the aid would be withheld until Ukraine conducted the investigations that Trump had requested.